HQ 0079931 - Tariff classification of a ladies' knit pullover garment - United States International Trade Commision Rulings

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HQ 079931

December 1, 1988

CLA-2 CO:R:C:G 079931 JLJ

CATEGORY: CLASSIFICATION

TARIFF NO.: 384.80

Ms. Hillary Pugh
Variety Imports, Inc.
2600 71st Street
North Berger, New Jersey 07047

RE: Tariff classification of a ladies' knit pullover garment

Dear Ms. Pugh:

You requested a reconsideration of a tariff classification and category for a women's garment made in Malaysia. You submitted a sample with your request.

FACTS:

The submitted sample, style number 1043, is a ladies' knit pullover garment covered by New York Seaport entry number 133- 1652521-4, dated November 5, 1986. The garment features a capped neckline, capped short sleeves, and a capped hemline. It extends from the shoulders to the thighs. The garment has a frontal opening, secured by means of five buttons reaching from the neck to the waist. It is a T-shirt type garment, except for its length and its partial frontal opening. It is made of 65 percent polyester and 35 percent cotton. Its fabric has more than 12 wales per inch. It is not ornamented for tariff purposes.

A Notice of Redelivery, Customs Form (CF) 4647, was issued for this entry on January 14, 1987, because the garment was held to be a shirt classified under the tariff provision for other women's, girls', or infants' wearing apparel, not ornamented, of man-made fibers, knit, blouses, body suits and body shirts, shirts (other than sweatshirts) and sweaters, shirts, other, women's, in item 384.8045, Tariff Schedules of the United States Annotated (TSUSA), requiring a visa for textile category 639.

You claim that the merchandise is nightwear classified under the provision for other women's, girls', or infants' wearing apparel, not ornamented, of man-made fibers, knit, other, pajamas
and other nightwear, other, in item 384.8634, TSUSA, requiring a visa for textile category 651. The merchandise was originally classified under this provision.

Furthermore, you state that you obtained oral tariff classification advice from the import specialist holding that the garment was nightwear classified in item 384.8634, TSUSA, requiring a visa for category 657, prior to importation.

The instant entry was liquidated under the provision for shirts in item 384.8045, TSUSA, on October 30, 1987.

ISSUE:

Is the instant garment classified as a shirt in item 384.8045, TSUSA, or as nightwear in item 384.8634, TSUSA?

LAW AND ANALYSIS:

The instant sample belongs to a class or kind of clothing which is multipurpose, capable of being worn on various occasions, including outdoors for casual social purposes as an oversized "big shirt". It provides the wearer with adequate coverage to be modestly dressed while appearing in public.

The sample is the type of garment commonly worn with jeans, knit pants or knit tights. It is not clearly identifiable as a garment used exclusively for sleeping, nor does it possess any distinguishing features which would dedicate it solely for use in bed.

The Court of International Trade, in Mast Industries v. United States, 9 CIT 549 (1985), aff'd 786 F.2d 1144 (1986), noted the definition of nightclothes as "garments to be worn to bed." Further, the Textile Category Guidelines, C.I.E. 6/87, reflect the many past decisions in which Customs has classified as nightwear those garments "worn for sleeping". The instant garment is worn as leisurewear, indoors and outdoors. Garments worn on the street are not classifiable under the statistical breakouts for pajamas and other nightwear.

HOLDING:

The instant garment is a shirt classified in item 384.8045, TSUSA, requiring a visa in textile category 639.

For future reference, please note that oral classification advice is not binding upon the Customs Service. In order to get a binding tariff classification ruling, you should submit a
written request and a sample of the merchandise to the United States Customs Service, 6 World Trade Center, New York, New York, 10048-0945.

Please note further that a CF 4647 is final unless protested within 90 days. The statute covering protests, 19 U.S.C.A. 1514(a) (1980 and Supp. 1987), provides that "decisions of the appropriate Customs officer, including the legality of all orders and findings entering into the same, as to--...(4) the exclusion of merchandise from entry or delivery or a demand for redelivery to Customs custody under any provision of the Customs laws...shall be final and conclusive upon all persons (including the United States and any officer thereof) unless a protest is filed in accordance with this section." Section 1514(c)(2)(B) requires that the protest be filed within 90 days after the date of the decision; in this case, that is the date of the notice of redelivery.

Sincerely,

John Durant, Director

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